United States v. Cox, Seth A. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1910
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SETH A. COX,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 CR 40063—Michael M. Mihm, Judge.
____________
ARGUED MAY 14, 2008—DECIDED AUGUST 4, 2008
____________
Before BAUER, FLAUM and MANION, Circuit Judges.
BAUER, Circuit Judge. Seth Cox was convicted of con-
spiring to manufacture, distribute and possess with intent
to distribute methamphetamine, in violation of 21 U.S.C.
§ 846. The district court sentenced Cox to 300 months’
imprisonment and five years of supervised release. Cox
appeals his conviction and sentence, and for the fol-
lowing reasons, we affirm.
2 No. 07-1910
I. BACKGROUND
From early 2003 through January 2004, Audie Weir
operated a methamphetamine-producing laboratory out
of his home in Bradford, Illinois. To produce methamphet-
amine, Weir needed the appropriate ingredients, and
would rely on various users to bring him ingredients in
exchange for drugs. Cox first met Weir in either late 2002
or early 2003, when he accompanied his cousin to Weir’s
house to trade ingredients for methamphetamine. Over
the ensuing ten months, Cox went to Weir’s house at
least once a week, frequently purchasing drugs or
trading ingredients for drugs from Weir. In addition to
providing ingredients to Weir, Cox helped him install a
four-camera surveillance system in his home. On January 2,
2004, state law enforcement officers raided Weir’s house
and uncovered the lab.
On June 22, 2005, a grand jury returned a single-count
indictment against Cox and three other men under 21
U.S.C. § 846 for conspiring to violate § 841(a), “that is, to
knowingly and intentionally manufacture, distribute,
and possess with intent to distribute” a controlled sub-
stance. Cox’s three co-defendants pleaded guilty; Cox
went to trial. The government’s evidence at trial, detailing
the facts set out above, included the testimony of Weir,
four other co-conspirators, and three law enforcement
officers.
On October 5, 2006, a jury returned a guilty verdict. The
district court sentenced Cox on April 13, 2007 to 300
months’ imprisonment, five years of supervised release, a
$100 special assessment, and joint and several liability
along with his co-defendants with respect to $6,137.56
in restitution. This timely appeal followed.
No. 07-1910 3
II. DISCUSSION
Cox argues that (1) the indictment charging him was
constitutionally defective, requiring vacatur; (2) the dis-
trict court erred by allowing a prejudicial comment before
the jury without striking it or giving a limiting instruc-
tion; and (3) the district court erred in calculating the
quantity of methamphetamine for which Cox was responsi-
ble. We address each issue in turn.
A. Sufficiency of the Indictment
Cox raises two issues in arguing that his convic-
tion should be vacated because of the defects in the indict-
ment. First, he argues that the indictment misstated the
statute under which he was charged, and therefore failed
to give adequate notice of the nature of the charge. Second,
he argues that the indictment failed to state all of the
elements of a drug-related conspiracy, again failing to
give him notice of the charge.
Cox challenges the indictment for the first time on
appeal. “[I]f an indictment has not been challenged at
the trial level, it is immune from attack unless it is so
obviously defective as not to charge the offense by any
reasonable construction.” United States v. Sandoval, 347
F.3d 627, 633 (7th Cir. 2003) (citing United States v. Ander-
son, 280 F.3d 1121, 1124 (7th Cir. 2002)). “[T]ardily chal-
lenged indictments should be construed liberally in
favor of validity.” United States v. Harvey, 484 F.3d 453,
456 (7th Cir. 2007) (citing United States v. Smith, 230 F.3d
300, 306 n. 3 (7th Cir. 2000)).
Under Rule 7(c)(1) of the Federal Rules of Criminal
Procedure, an indictment must be “a plain, concise, and
4 No. 07-1910
definite written statement of the essential facts con-
stituting the offense charged. . . .” Fed. R. Crim. P. 7(c)(1).
We have held that an indictment is constitutionally suf-
ficient and satisfies Rule 7(c)(1) if: (1) the indictment
states all of the elements of the crime charged; (2) it
adequately apprises the defendant of the nature of the
charges so that he may prepare a defense; and (3) it
allows the defendant to plead the judgment as a bar to
any future prosecutions for the same offense. Harvey,
484 F.3d at 456 (citing United States v. Agostino, 132 F.3d
1183, 1189 (7th Cir. 1997)). As a general matter, “[i]ndict-
ments are reviewed on a practical basis and in their
entirety, rather than in a hypertechnical manner.” Id.(quoting Smith, 230 F.3d at 306 n. 3).
Section 841(a)(1) makes it unlawful for a person know-
ingly or intentionally “(1) to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute,
or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1)
(emphasis added). The indictment charged Cox with
conspiring to violate § 841(a), “that is, to knowingly and
intentionally manufacture, distribute, and possess with
intent to distribute” a controlled substance.
Cox first argues that the language of § 841(a) makes it a
crime to perform any one of four prohibited acts (to
manufacture, distribute, dispense, or possess with intent
to do any of the other three acts), whereas the indictment
indicates that a person only violates § 841(a) when he
performs each and every one of those acts. Based on
this, Cox posits that he could have reasonably believed
that the governments’ failure to prove any one of these
elements would have justified acquittal. However, the
substitution of the conjunctive “and” for the disjunctive
“or” does not torpedo Cox’s indictment. We have held
No. 07-1910 5
that “where a statute defines two or more ways in which
an offense may be committed, all may be alleged in the
conjunctive in one count.” United States v. Moore, 363
F.3d 631, 640 (7th Cir. 2004) vacated on Booker grounds sub
nom. Young & Jackson v. United States, 543 U.S. 1100, 125
S.Ct. 1019, 160 L.Ed.2d 1001 (2005) (citing United States
v. LeDonne, 21 F.3d 1418, 1427 (7th Cir. 1994). Other cir-
cuits have held the same. See United States v. Brown, 504
F.3d 99, 104 (D.C. Cir. 2007); United States v. Montgomery,
262 F.3d 233, 242 (4th Cir. 2001); United States v. McAuliffe,
490 F.3d 526, 534 (6th Cir. 2007); United States v. Roy, 408
F.3d 484, 492 n. 4 (8th Cir. 2005); United States v. Booth, 309
F.3d 566, 572 (9th Cir. 2002); see also 1 Charles A. Wright,
Federal Practice and Procedure § 125 (3d ed. 1999) (“Many
statutes specify a variety of ways a particular crime can
be committed, and if so, the indictment may allege com-
mission of the offense by all the acts mentioned if it uses
the conjunctive ‘and’ where the statute uses the disjunctive
‘or.’ ”); 9 Federal Procedure, Lawyers Edition § 22:863 (2008).
Cox attempts to skirt the rule by arguing that Cox
was indicted for a conspiracy under § 846, and not for a
substantive violation of § 841, and that the rule does not
apply in conspiracy situations. This is a distinction with-
out a difference. The purpose of the rule allowing con-
junctive wording in an indictment that charges an
offense under a statute worded in the disjunctive is to
“adequately apprise the defendant of the government’s
intention to charge him under [any] prong of the stat-
ute.” LeDonne, 21 F.3d at 1427. An indictment that did not
follow this rule and alleged several acts in the disjunctive
would fail to give the defendant notice of the acts he is
charged with committing. See generally 1 Charles A. Wright,
Federal Practice and Procedure § 125 (3d ed. 1999) (citing
6 No. 07-1910
United States v. Donovan, 339 F.2d 404, 407-08 (7th
Cir. 1964) cert. denied 85 S.Ct. 1338, 380 U.S. 975, 14
L.Ed.2d 271)). The same principle applies here. Had the
indictment not included the “and,” Cox would not have
been adequately apprised of the fact that the government
was charging him with conspiring to commit any one of the
specific acts listed in the indictment. The fact that he was
charged under the conspiracy statute does not change the
government’s duty to inform Cox of all the potential
illegal acts he is alleged to have committed.
In any event, we cannot say on a practical basis that the
indictment was obviously defective for including the
conjunctive, and the lack of prejudice is indicated by the
fact that Cox did not think to make this argument to the
district court.
Cox briefly mentions that the district court may have
constructively amended the indictment through the jury
instructions, which replaced the “or” found in § 841(a)(1)
and stated that “[t]he government need not prove that
the defendant conspired to commit all three offenses.” He
does not develop this argument; at any rate, we have
addressed this argument before in this context, and
rejected it. See United States v. Jones, 418 F.3d 726, 729-30
(7th Cir. 2005) (finding that the substitution of “or” in jury
instructions for “and” in indictment did not broaden
charge so as to constructively amend the indictment);
United States v. Muelbl, 739 F.2d 1175, 1179-81 (7th Cir.
1984).
Cox next argues that the indictment fails to set forth
the elements of conspiracy under 21 U.S.C. § 846. The
indictment alleges that from March 2003 to July 2005 in
Henry County, Illinois, Cox and others “did conspire” to
commit an offense under § 841(a). He argues that this was
No. 07-1910 7
not enough to state all of the elements of the crime
charged, as it did not offer a legal definition of the term
“conspire” or “conspiracy.” We have held that an indict-
ment under § 846 is sufficient if it alleges a conspiracy to
distribute drugs, the time during which the conspiracy
was operative, and the statute allegedly violated. United
States v. Spears, 965 F.2d 262, 279 (7th Cir. 1992) (citing
United States v. Sweeney, 688 F.2d 1131, 1140 (7th Cir. 1982));
United States v. Dempsey, 806 F.2d 766, 769 (7th Cir. 1986);
United States v. Roman, 728 F.2d 846, 852 (7th Cir. 1984).
Construing the indictment in this case “liberally in favor
of validity,” the indictment easily satisfied these require-
ments.
We find nothing in the indictment “so obviously defec-
tive as not to charge the offense by any reasonable con-
struction.”
B. Comments During Trial
During the trial, two government witnesses described
the method used to cook methamphetamine in clan-
destine labs such as Audie Weir’s as the “Nazi method.”1
1
Why the “Nazi method”? Our sister circuit explained: “The
‘Nazi method’ makes use of readily available ingredients and
yields a very pure product. The technique takes its name from
the method perfected and used by German soldiers during
World War II to produce methamphetamine so they could
stay alert while in the field.” United States v. Lynch, 322 F.3d
1016, 1018 n.2 (8th Cir. 2003); see also United States v. Ward,
182 Fed.App’x 779, 792 n.5 (10th Cir. 2006) (unpublished
opinion) (“The ‘Nazi method’ of manufacturing methamphet-
(continued...)
8 No. 07-1910
Cox argues that the district court plainly erred by failing
to strike the “Nazi” comments as irrelevant or unduly
prejudicial, and by failing to sua sponte clarify that Cox
was not affiliated with the Nazis in any way. Cox did
not object to the comments, so we review for plain error.
United States v. Price, 418 F.3d 771, 779 (7th Cir. 2005).
Under this standard, we may reverse only if the error
complained of meant that Cox “probably would not
have been convicted but for the [error].” United States v.
Curtis, 280 F.3d 798, 801 (7th Cir. 2002).
We recognize the powerful emotions associated with
the very mention of the word “Nazi” in a courtroom, and
that the description by the government witnesses of the
method used by Weir had almost no probative value. The
difficulty with Cox’s argument is that he failed to give
the district court opportunity to balance the probative
value of the evidence against any unfair prejudice, and
it was incumbent upon him to do so. To require the dis-
trict court, without prompting, to comment on facts as
they unfold in the course of the proceedings would place
the court in the role of an advocate. The district court
did not err in failing to sua sponte strike the comment
from the record or to instruct the jury that Cox was not
affiliated in any way with the Nazis or neo-Nazis. Of
course, even if it did err in that regard, Cox has not met
his burden in demonstrating that he probably would not
have been convicted but for the “Nazi method” comment.
The evidence presented at Cox’s trial was more than
1
(...continued)
amine obtained its name because the process originated in
Germany and was utilized in World War II by their troops.”).
No. 07-1910 9
sufficient to establish that Cox was a participant in the
methamphetamine conspiracy. No plain error exists by
the admission of the statements of the government wit-
nesses.
C. Drug Quantity
Cox finally argues that the district court erred in cal-
culating the quantity of methamphetamine for which Cox
was responsible. He contends that the primary evidence
relied upon by the court in making its calculation—the
testimony of Weir—lacked sufficient reliability.
We review a district court’s calculation of drug quantity
for sentencing purposes for clear error. United States v.
Soto-Piedra, 525 F.3d 527, 529 (7th Cir. 2008). The govern-
ment must prove drug quantity by a preponderance of
the evidence. Id. (citing United States v. McGowan, 478
F.3d 800, 802 (7th Cir. 2007)). We require that the evid-
ence relied upon by the district court at sentencing
bear “sufficient indicia of reliability.” United States v.
Wilson, 502 F.3d 718, 721-22 (7th Cir. 2007).
Evidence of drug quantity must be based on more than
just “nebulous eyeballing,” but the Sentencing Guide-
lines permit some amount of reasoned “speculation and
reasonable estimation” by the sentencing court. United
States v. Hollins, 498 F.3d 622, 631 (7th Cir. 2007) (quoting
United States v. Jarrett, 133 F.3d 519, 530 (7th Cir. 1998); see
U.S.S.G. § 2D1.1, Application Note 12 (“Where there is
no drug seizure or the amount seized does not reflect the
scale of the offense, the court shall approximate the quan-
tity of the controlled substance. In making this determina-
tion, the court may consider, for example, . . .
similar transactions in controlled substances by the de-
10 No. 07-1910
fendant. . . .”). In this case, the district court calculated the
drug quantity attributable to Cox by multiplying the
average weight of methamphetamine cooked by
Weir during each batch by the number of times that he
cooked methamphetamine during the time that Cox
participated in the conspiracy. We have previously up-
held similar methods of calculation. See, e.g., United States
v. White, 360 F.3d 718, 720 (7th Cir. 2004); United States
v. Beler, 20 F.3d 1428, 1434 (7th Cir. 1994).
Weir testified that in each production, he “always”
cooked at least fifty grams of methamphetamine. He
further testified that he “sometimes” cooked seventy-five
grams, and “occasionally” more than 150 grams. The
PSR estimated that the average weight per production
was 110 grams. Cox objected to this estimate, and sug-
gested that the amount should be “average[d] down” to
between fifty and a hundred grams. The district court
agreed to Cox’s proposal, and adopted an average of
seventy-five grams per production.
As to the frequency of production, Weir’s testimony
was less clear. He testified at one point that he cooked
methamphetamine at least two times a month; at another
point, he claimed he cooked “[o]nce a week most of the
time.” The district court reviewed the trial transcript and
found that Cox was involved in the drug conspiracy for
ten months, and Cox agreed to that time frame. Based on
these two facts, the district court conservatively esti-
mated that, during time that Cox was involved with the
conspiracy, Weir cooked methamphetamine at least
No. 07-1910 11
twenty-four times.2 This calculation was thoroughly
explained by the district court, and we find no error in
the method or explanation.
Cox argues that the district court should not have
relied on Weir’s testimony because he was an admitted
methamphetamine user and gave inconsistent testimony
regarding events two years prior to the sentencing hearing,
a period during which Weir admittedly used drugs.
Determinations of witness credibility are entitled to
great deference and “can virtually never be clear error.”
United States v. Blalock, 321 F.3d 686, 690 (7th Cir. 2003).
While heavy drug use is a factor that the court can use
in making its determination, it is not outcome-determina-
tive. See United States v. Crockett, 82 F.3d 722, 727 (7th Cir.
1996). The district court scrutinized Weir’s testimony
precisely because of the concerns raised by Cox, and noted
that “I did not get the sense during the course of his
testimony that he was fabricating or exaggerating.” That
judgment is afforded substantial deference.
The testimony of Weir, judged by the district court to
be credible, bore sufficient indicia of reliability, and
therefore we find no clear error in the court’s drug
quantity calculation.
2
As the government correctly notes, even if the district court
strictly used the “two times a month” production rate, two
productions per month over ten months at seventy-five
grams per production equals a total of 1,500 grams of metham-
phetamine, which is the minimum amount needed to place
Cox’s offense at Level 34, the level at which he was sentenced.
12 No. 07-1910
III. CONCLUSION
Accordingly, we AFFIRM Cox’s conviction and sentence.
USCA-02-C-0072—8-4-08